On June 8, the U.S. Court of Appeals for the 1st Circuit stated that Fannie Mae and Freddie Mac (GSEs) can continue non-judicial foreclosures in states that permit them, holding that the GSEs are not “government actors” despite being controlled by FHFA. According to the opinion, the plaintiffs obtained mortgages that were later sold to Fannie Mae. After the borrowers defaulted on their loans, Fannie Mae, consistent with Rhode Island law, conducted non-judicial foreclosure sales of the properties. The plaintiffs filed suit, arguing that Fannie Mae and FHFA (which acts as Fannie Mae’s conservator) are government actors and that the nonjudicial foreclosure sales violated their Fifth Amendment procedural due process rights. The district court disagreed, however, and granted the defendants’ motion to dismiss on the grounds that “because FHFA stepped into Fannie Mae’s shoes as its conservator and its ability to foreclose was a ‘contractual right inherited from Fannie Mae by virtue of its conservatorship,’ FHFA was not acting as the government when it foreclosed on the plaintiffs’ mortgages and was not subject to the plaintiffs’ Fifth Amendment claims.” The court further determined that FHFA’s conservatorship over Fannie Mae did not make Fannie Mae a government actor subject to the plaintiffs’ constitutional claims because FHFA “does not exercise sufficient control” over the GSE. The plaintiffs appealed, arguing, among other things, that the FHFA’s nearly 13-year conservatorship of the GSEs makes its control permanent and renders them governmental actors.

On appeal, the appellate court concluded that in its role as conservator, “FHFA is not a government actor because it has ‘stepped into the shoes’ of the private GSEs” and assumed all of their private contractual rights, including the right to perform non-judicial foreclosures. The appellate court also refuted the plaintiffs’ argument that FHFA’s 13-year conservatorship made its control permanent, pointing out that the “housing and mortgage financial markets are highly complex, as are the various indicators of their financial health, so the fact that FHFA has maintained the conservatorship for almost thirteen years does not mean that the government’s control is permanent.” As such, because the GSEs are not government actors they are also not subject to the plaintiffs’ due process claims, the appellate court concluded.